JUDGMENT

According to the petitioner, the 3rd respondent had borrowed Rs.23,00,000/- from the petitioner for his share trading business. Due to the failure on the part of the 3rd respondent to repay the amount as agreed, the petitioner approached the Taluk Legal Service Committee, Chavakkad and based on a compromise between the parties, Ext. P1 award dated 14.05.2015 was passed in the Pre-litigation petition P.L.P. No. 531/2015. As per Ext.P1, the 3rd respondent was required to repay the amount along with damages. However, the 3rd respondent failed to fulfill the said obligation and the petitioner filed E.P. No. 55/2015 before the Sub Court Thrissur for execution of Ext. P1 award. Consequently, the Court conducted an auction and the petitioner purchased the property.

2. The petitioner states that the 3rd respondent attempted to stall the confirmation of sale by all means, and various Execution Appeals and Execution First Appeal were filed at the instance of the 3rd respondent. However, all the appeals were dismissed by the Courts and the executing Court issued Ext. P3 sale certificate dated 30.09.2016 to the petitioner. Accordingly, the property was delivered to the petitioner. However, it later came to the notice of the petitioner that the 3rd respondent had mortgaged the property with M/s HDFC Limited. The petitioner states that this fact was suppressed by the 3rd respondent while entering into the agreement leading to Ext. P1 award.

3. Meanwhile, M/s HDFC Limited filed W.P.(C) No.

7244/2020 claiming that they had taken possession of the property under the SARFAESI Act, conducted an auction, and issued a sale certificate in favour of one Sulochana Chinnappan, but, the Sub Registrar refused to register the property due to the previous registration of the Ext. P3 Sale Certificate issued by the executing Court to the petitioner. The petitioner, the 3rd respondent, his wife, the

4th respondent and Smt. Sulochana Chinnappan, the auction purchaser, were parties to the said writ petition. During the pendency of the said writ petition, a settlement was arrived at between the parties and the petitioner agreed to pay Rs.25,00,000/- to Sulochana Chinnappan, and all claims including that of the HDFC Bank were settled and as a result, this Court set aside the sale certificate issued to Smt. Sulochana Chinnappan.

4. Later, the petitioner decided to sell the property to overcome his financial constraints. However, upon scrutinizing the encumbrance certificate, the petitioner noticed that the 4th respondent, the wife of the 3rd respondent had obtained an attachment over the property as per the order in I.A. No.1770/2015 in O.P. No. 677/2015 of the Family Court, Thrissur. When the petitioner approached the Sub Registrar to register the property covered by Ext.P3, the 1st respondent insisted on obtaining a Record of Right (ROR) certificate from the 2nd respondent Village Officer. However, the 2nd respondent refused to issue ROR certificate since the encumbrance certificate carries the endorsement of the attachment obtained by the 4th respondent. The petitioner states that, O.P. No. 677/2015 in which the 4th respondent obtained the attachment was later allowed, but the decree/order was not executed which shows a collusive attempt to prevent the petitioner from enjoying the property. The petitioner contends that an attachment under Order 38 Rule 5 of the Code of Civil Procedure is not an encumbrance over the property and that a charge created under Section 100 of the Transfer of Property Act, 1882 gets precedence over the attachment. Accordingly, the petitioner has filed this writ petition for a declaration that the order of attachment obtained by the 4th respondent against the 3rd respondent has no consequence over the property covered by Ext.P3 sale certificate and for direction to the 1st respondent to register the said property without insisting for ROR certificate.

5. Heard the learned counsel for the petitioner and the learned Government Plea